COURT FILE AND PARTIES

COURT FILE NO.: 157/11

DATE: 20141007

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amy West, by her Litigation Guardians David K. West and Kathryn J. Firth, David K. West, and Kathryn J. Firth v. Kyle R. Goldie, Steven M. Gibson, Plaintiffs

AND:

Kyle R. Goldie, Steven M. Gibson, and County of Peterborough, Defendants

BEFORE: Justice B. G. MacDougall

COUNSEL:
A. Little, Counsel, for the Plaintiffs

J. Pedro, Counsel, for the Defendants, Steven M. Gibson and County of Peterborough

J. Forester, Counsel for Defendant, Kyle Goldie

HEARD: September 12, 2014

ENDORSEMENT

The Motions

[1] The Defendants Gibson and the Corporation of the County of Peterborough (the moving Defendants) brought a motion seeking leave to issue a Third Party Claim to add Navistar Canada, Inc. as a Third Party to the action.

[2] On September 16, 2014, I released my decision granting leave to the moving Defendants to issue the proposed Third Party Claim with reasons to follow. These are the reasons.

Factual Overview

[3] The Plaintiffs claim damages from the Defendants as result of a motor vehicle accident which occurred on January 16, 2011.

[4] The Plaintiff, Amy West, sustained catastrophic injuries in the accident. She was a front seat passenger in her own vehicle driven by the defendant, Goldie, when the vehicle came into collision with the rear of the disabled County of Peterborough (the County) snowplow. The defendant, Gibson, was operating the snowplow at the time the collision.

[5] The Defendants, Gibson and the County of Peterborough, seek leave to issue a Third Party claim against Navistar Canada, Inc. which manufactured the International truck operated by Gibson at the time of the collision. The International truck had been modified by the County into a snowplow.

[6] Just prior to the collision, Gibson was operating the snowplow in the early evening on a rural road when Gibson observed steam or smoke coming from under the hood and stopped the truck activating the hazard lights. He discovered that a coolant hose had ruptured. After Gibson called for a mechanic to attend the scene, the truck suddenly lost all electrical power which resulted in the hazard lights no longer flashing.

[7] Shortly thereafter, the vehicle driven by Goldie which was westbound, rear-ended the disabled truck. The collision between the car and the truck suddenly caused the power and lighting for the County’s truck to be restored.

[8] The moving Defendants retained an engineering firm to perform a mechanical assessment of the County’s truck. According to the engineer’s report, dated December 11, 2012, all of the truck’s power was routed through a single wiring harness in the engine compartment. The engineers opined that the truck “lost all its power due to the poor connection within the connector body as result of a latent in manufacturing defect in the connector”.

[9] On March 4, 2013, the moving Defendants retained Niagara Appraisal Services to determine whether the alleged defective connector was a component installed at the time of manufacture or at later date when the truck was modified into a snowplow. Niagara Appraisal Services in its report, dated May 21, 2014, was of the opinion that the component was installed at the time the truck was originally manufactured.

[10] It is the position of the moving Defendants that they did not nor that they could not reasonably have known that they had a cause of action against the proposed Third Party until they received the report of Niagara Appraisal Services, dated May 21, 2014, and therefore the limitation period with respect to their cause of action against the proposed Third Party, did not begin to run until that date.

[11] A pretrial conference was held on June 10, 2014 and the trial of the action was “targeted” to begin on November 10, 2014 as lead counsel for the moving Defendants was scheduled to be in a three-month trial in Windsor that would continue into the November 10, 2014 trial sittings in Peterborough.

[12] As the length of the trial for this action was to extend beyond the normal three weeks sittings, the Regional Senior Justice, on December 5, 2013 designated a trial judge to commence the trial on November 10, 2014 for 6 weeks and to continue for 2 weeks starting January 5, 2015.

[13] After this motion was argued, I was informed by Plaintiff’s counsel that the case that Defendant’s lead counsel was on in Windsor settled a few days after it commenced.

[14] The Plaintiff, West, settled her Accident Benefit Claims in December 2012 for $1,400.000.

The Law

[15] Rule 29.02(1.2) of the Rules of Civil Procedure[^1] provides that a Third Party claim may be issued at any time with the Plaintiff’s consent or with leave, which the court shall grant unless the Plaintiff will be prejudiced thereby.

[16] The principles that are applicable are helpfully summarized in the decision of Chapnik J. in Medeiros vs. Dilworth[^2]:

• If the matter is vital to the final disposition of the action, the fact that the defendant can commence a separate action for this purpose does not diminish the importance of the issue.

• Prejudice contemplated in Rule 29.02 (1.2) belies more than inconvenience and the additional work which flows inevitably when a Third Party is added (which could be compensated by costs).

• The court must evaluate all relevant circumstances and factors to determine whether any delay will unduly prejudiced the Plaintiff.

• As per comments of the Ontario Court of Appeal in Bell Canada v. Olympia & York[^3], absent any prejudice to the Plaintiff, delay in moving to add a Third or Fourth party claim would not in itself be fatal to the granting of the order, the rule being mandatory in its terms.

• As a policy matter, it is important that all issues be tried at one time even if that means some delay in proceeding to trial so a multiplicity of proceedings will be avoided, as contemplated by s. 138 of the Courts of Justice Act[^4].

Summary of Positions of Counsel

[17] Counsel for the moving Defendants submit that there is no undue prejudice to the Plaintiff as the main action has proceeded in a timely fashion; the injured plaintiff has received payments from the settlement of her Accident Benefit claims which will allow her to pay for expenses as result of the trial having to be adjourned; and, the moving Defendants will be severely prejudiced if they are not allowed to claim contribution and indemnity against the Third Party for the significant damages being sought by the Plaintiff. It is also likely that if leave is not granted to issue the Third Party claim, the moving Defendants will be commencing a separate action against the proposed Third Party and that Third Party would likely move for an order that the actions be tried together. If that order was granted, that would necessitate an adjournment of this trial.

[18] Counsel for the Plaintiff submits that the motion to commence this Third Party proceeding should be dismissed as the Plaintiff, Amy West, will suffer “irreparable prejudice” should leave be granted. The injured plaintiff suffered multiple fractures and a severe brain injury and at present remains nonverbal, eats through a feeding tube and will require 24-hour attendant care for the remainder of her life. The commencement of the Third Party “product liability” claim will result in a lengthy delay which will result in the Plaintiff’s limited financial resources being eliminated because of her substantial treatment, housing and attendant care costs.

[19] Plaintiff’s counsel submits that the Plaintiff’s cost of care treatment is approximately $44,000 per month. As result of the of the extended adjournment of the trial to allow the moving Defendants to pursue the Third Party “complicated product liability” claim, it is likely that the Plaintiff will deplete all of her funds available for treatment before this action is concluded and all rights of appeal are exhausted. In addition, the completion of the necessary home renovations for the Plaintiff would be delayed.

Analysis

[20] In evaluating all relevant circumstances and factors to determine whether any delay will unduly prejudice the Plaintiff, I have taken into account the following:

(i) Granting leave to issue the Third Party claim will necessitate an adjournment of the trial for at least a year.

(ii) This action has proceeded expeditiously and was ready for trial earlier than most personal injury cases where there are “catastrophic injuries”.

(iii) The settlement of the Plaintiff’s Accident Benefit claims has resulted in a significant source of funds available to the Plaintiff even when considering the kind of care that she requires.

(iv) Given the unusual factual circumstances of a sudden loss of power to the disabled snowplow causing the hazard lights to go off and then the power being restored as a result of the collision, and based on the opinions being tendered that the truck had a “latent manufacturing defect” involving the truck’s wiring, there is an arguable basis for the moving Defendants to join the Third Party as a possible contributing tortfeasor.

Conclusion

[21] Although granting leave to the moving Defendants to issue the Third Party claim in these circumstances will result in some prejudice to the Plaintiff as result of the trial being delayed, I am not of the view that the delay would result in undue prejudice to the Plaintiff. As result, as Rule 29.02 (2.1) requires that the court shall grant leave, the moving Defendants’ motion is granted.

Costs

If the issue of cost cannot be agreed to, the party seeking costs shall submit brief written submissions (no more than five pages), within 10 days with the reply of equal length, within 5 days thereafter.

MacDougall, J.

Date: October 7, 2014

[^1]: RRO 1990, reg. 194

[^2]: 2002 49431 (ON SC)

[^3]: 1988 CarswellOnt 478 (ONCA)

[^4]: RSO 1990, c C.43